Even a Feather Has Some Weight: Plaintiffs’ Evidentiary Burden in Jones Act Cases

A federal judge in the Southern District of New York has granted summary judgment in a Jones Act case involving multiple etiologies of Plaintiff’s injuries in favor of an oil shipping defendant.  This ruling stands to have far-reaching impact in lung cancer cases when there are other viable causes of the plaintiff’s cancer.

Factual Background

The case, Scott K. Keller v. ExxonMobil Oil Corporation, involved a non-smoking Plaintiff who alleged he developed lung cancer due to exposure to toxic substances during his service as a cadet in the U.S. Merchant Marine Academy and as a merchant mariner on private commercial vessels at sea and in shipyards for roughly forty years (1970 to 2013).  However, over the past sixty-two years, Plaintiff also resided in areas designated as “Red Zones” by the U.S. Environmental Protection Agency (“EPA”) due to elevated radon levels.  Radon is a well-known carcinogen and the leading cause of lung cancer among non-smokers.

Exclusion of Expert Testimony

The Court granted Defendant’s motion to exclude Plaintiff’s specific-causation expert pulmonologist/pathologist, concluding that the expert expressed an opinion devoid of supporting data, failed to quantify Plaintiff’s alleged dose of asbestos exposure, and ignored alternative causes of lung cancer, such as radon, which were present at elevated levels in plaintiff’s home.

Grant of Summary Judgment

The Court’s ruling reiterated the key principle that “toxic tort claims brought under the Jones Act require expert testimony to establish causation where an injury – like lung cancer – has multiple potential etiologies.”  That was fatal to Plaintiff’s claims: once the Court excluded Plaintiff’s specific-causation expert, Plaintiff was left without sufficient evidence in the record to support a finding attributing his lung cancer to any toxic exposures aboard Defendant’s vessels.  Lacking admissible direct evidence of exposure to any toxic substance on Defendant’s vessels, the Court thereby granted summary judgment since the record was bereft of evidence on the issue of specific causation.

The Keller decision is a timely reminder to toxic-tort practitioners that a plaintiff’s evidentiary burden in Jones Act cases, though often deemed “featherweight,” still requires reliable and well-supported expert testimony to establish specific causation under Rule 702, particularly in cases posing multiple potential etiologies for the development of the plaintiff’s injury.

The Defendant in this case was represented by Dennis E. Vega, Partner at Foley Mansfield, as well as William T. Miedel,[1] Pamela R. Kaplan[2] and Arshia M. Hourizadeh.[3]

The Plaintiff was represented by John E. Herrick and Meredith K. Clark of Motley Rice LLC.

[1] William T. Miedel is an associate with Tanenbaum Keale LLP.

[2] Pamela R. Kaplan is a partner with Tanenbaum Keale LLP.

[3] Arshia M. Hourizadeh is of counsel with the Renzulli Law Firm LLP.